Higgs v Farmor’s School
| Jurisdiction | UK Non-devolved |
| Court | Employment Appeal Tribunal |
| Neutral Citation | [2023] EAT 89 |
| Year | 2023 |
2023 March 16; June 16
Discrimination - Religion or belief - Manifestation - Claimant secondary school employee making social media posts critical of relationships education in primary schools - Complaint by parent that posts homophobic and prejudiced - Claimant dismissed for gross misconduct - Employment tribunal rejecting claim of direct discrimination and harassment because of protected beliefs - Whether requisite nexus between protected beliefs and social media posts such that posts manifestation of beliefs - Correct approach to whether objection could justifiably be taken to way beliefs manifested -
The claimant was employed by the respondent secondary school as a pastoral administrator and work experience manager. In both roles she had contact with parents and pupils, some of whom had lesbian, gay, bisexual and/or transgender characteristics or were questioning whether they did so. After complaints were received from a parent of pupils at the school relating to social media posts the claimant had made expressing strong concerns around relationships education in primary schools, she was suspended and, after a disciplinary investigation and hearing, dismissed for gross misconduct. The claimant brought claims of direct discrimination on grounds of religion or belief or of unlawful harassment relating to her protected beliefs, contrary to sections 13 and 26 of the Equality Act 2010F1. Although the claimant was a Christian, she contended that she had been directly discriminated against or harassed not for her Christianity per se but for her beliefs, including a lack of belief in gender fluidity and same-sex marriage. The employment tribunal rejected the claim of direct discrimination, concluding that the measures taken by the respondent had been due to its concerns that someone reading the claimant’s posts could reasonably consider she held homophobic and transphobic views, which she vehemently denied, and that the reason for its actions was, therefore, not because of, or related to, the claimant’s beliefs, regardless of whether they were in fact protected beliefs or not. It also rejected the claim of harassment, on the basis that the necessary causal nexus was missing, since it was not the claimant’s beliefs that had led to her treatment but the way in which she had expressed them, which might have reasonably led someone who read them to conclude that she held homophobic and transphobic views that she expressly rejected.
On the claimant’s appeal—
Held, allowing the appeal, that, when considering each of the decisions made by the respondent, the employment tribunal had failed properly to engage with the question as to whether there was a sufficiently close or direct nexus between the claimant’s protected beliefs and her social media posts, such as to mean that those posts were to be viewed as a manifestation of her beliefs; that it had, therefore, also failed to go on to answer the subsequent question, namely, if those posts were to be viewed as such, whether the claimant had manifested her beliefs in a way to which objection could justifiably be taken, which involved a recognition of the essential nature of the claimant’s right to freedom of belief and to the freedom to express that belief, followed by a proportionality assessment; that it was clear that, had the tribunal engaged with the first question, it would have concluded that there was a close or direct nexus between the claimant’s social media posts and her protected beliefs; that the second question could not be determined on appeal and the appropriate disposal was for the matter to be remitted for determination of the question as to whether, recognising the essential nature of the claimant’s rights to freedom of belief and freedom of expression, the measures adopted by the respondent were prescribed by law, and, if so, whether those measures were necessary in pursuit of the protection of the rights, freedoms or reputation of others (post, paras 81–88, 90–92, 95, 96).
Guidance as to the approach to be adopted when assessing the proportionality of any interference with rights to freedom of religion and belief and of freedom of expression (post, para 94).
The following cases are referred to in the judgment:
Anya v University of Oxford
Bank Mellat v HM Treasury (No 2)
Bougnaoui v Micropole SA
Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV
Chondol v Liverpool City Council UKEAT/298/08 (unreported) 11 February 2009,
De Haes v Belgium (Application No 19983/92) (
Din (Ghulam) v Carrington Viyella Ltd (Jersey Kapwood Ltd) [
Eweida v United Kingdom (Application Nos 48420/10, 59842/10, 51671/10 and 36516/10) (
Gallagher, In re; R (P) v Secretary of State for Justice
Giniewski v France (Application No 64016/00) (
Grace v Places for Children UKEAT/217/13 (unreported) 5 November 2013,
Grainger plc v Nicholson [
Handyside v United Kingdom (Application No 5493/72) (
Huvig v France (Application No 11105/84) (
IX v WABE eV
Jafri v Lincoln College
Kirk Session of Sandown Free Presbyterian Church’s Application for Judicial Review, In re
Klein v Slovakia (Application No 72208/01) (
Kruslin v France (Application No 11801/85) (
Kuteh v Dartford and Gravesham NHS Trust
LF v SCRL
Lee v Ashers Baking Co Ltd
Mba v Merton London Borough Council
Overd v Chief Constable of Avon and Somerset Constabulary
Page v NHS Trust Development Authority
R v Shayler
R (European Roma Rights Centre) v Immigration Officer at Prague Airport
R (Miller) v College of Policing
R (ProLife Alliance) v British Broadcasting Corpn
R (Purdy) v Director of Public Prosecutions
R (SB) v Governors of Denbigh High School
Şahin v Turkey (Application No 44774/98) (
Vajnai v Hungary (Application No 33629/06) (
Vogt v Germany (Application No 17851/91) (
Wasteney v East London NHS Foundation Trust [
APPEAL from an employment tribunal sitting at Bristol
By an employment tribunal claim lodged on 15 April 2019, the claimant, Kristie Higgs, complained that she had suffered unlawful discrimination by her employer, the respondent, Farmor’s School, under the Equality Act 2010, namely direct discrimination because of, or unlawful harassment related to, religion or belief, when she was dismissed following an investigation into complaints by a parent of pupils at the school about social media posts she had made. By a decision sent to the parties on 6 October 2020, the tribunal dismissed the claims. The claimant appealed on seven grounds, inter alia, that the tribunal had erred in law in failing to consider the proportionality of the interference with the manifestation of her religious/philosophical beliefs and whether that interference was prescribed by law, and in holding that there was no discrimination when the respondent had dismissed her because of a complainant’s objection to her beliefs, which in any event had not been properly understood.
The Archbishops’ Council of the Church of England as intervener was given permission to make general submissions.
The facts are stated in the judgment, post, paras 4–17.
Richard O’Dair (instructed by
Debbie Grennan (instructed by
Sarah Fraser Butlin (instructed by
The appeal tribunal took time for consideration.
16 June 2023. EADY J (President) handed down the following judgment.
Contents | |
Introduction |
paras 1–3 |
The facts |
paras 4–17 |
The claim before the employment tribunal and the employment tribunal’s decision and reasoning |
paras 18–27 |
The legal framework |
paras 28–58 |
The grounds of appeal and the claimant’s submissions in support |
paras 59–67 |
The respondent’s case |
paras 68–75 |
Submissions on behalf of the intervener |
paras 76–78 |
Analysis and conclusions |
paras 79–95 |
Disposal |
paras 96–98 |
1 This appeal raises questions as to the approach to be taken to the determination of claims of direct discrimination because of, or harassment related to, religion or belief. More broadly, these proceedings raise...
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